1
EXHIBIT 4.45
DEBT SUBORDINATION AGREEMENT
THIS DEBT SUBORDINATION AGREEMENT ("Agreement"), made and entered into this
10th day of December, 1996, by and between CAPITAL FACTORS, INC., a Florida
corporation ("Senior Lender"); and CONSOLIDATED FURNITURE CORPORATION (f/k/a
Mohasco Corporation), a New York corporation ("Subordinated Lender");
WITNESSETH:
WHEREAS, The Barcalounger Company, a division of Furniture Comfort
Corporation, a Delaware corporation ("Borrower") and the Senior Lender propose
to enter into that certain Factoring Agreement, dated of even date herewith
(such Factoring Agreement, as it may be hereafter amended, modified,
supplemented or restated from time to time, together with all documents,
instruments and other agreements executed from time to time pursuant thereto or
in connection therewith, being herein called the "Senior Lender Documents"),
pursuant to which, and upon the terms and subject to the conditions thereof, the
Senior Lender will factor the accounts of the Borrower and make loans and
advances and extend other credit accommodations to the Borrower, secured by
liens in and security interests upon certain of the Borrower's assets, all as
more particularly set forth therein;
WHEREAS, the Subordinated Lender has made and may hereafter make loans,
advances and other extensions of credit to the Borrower;
WHEREAS, the Senior Lender, as a condition precedent to entering into the
Senior Lender Documents and extending the credit to the Borrower contemplated
thereby, requires the execution of this Agreement by the Subordinated Lender
establishing the relative priorities and right of payment and claim of the
indebtedness of the Borrower to the Senior Lender arising under the Senior
Lender Documents and the indebtedness of the Borrower to the Subordinated Lender
which is now existing or may be hereafter incurred; and
WHEREAS, the Borrower is a wholly-owned subsidiary of the Subordinated
Lender and it is to the direct benefit and advantage of the Subordinated Lender
for the Senior Lender to enter into the Senior Lender Documents with the
Borrower and to factor the accounts of the Borrower and to make the loans and
advances and extend the other credit to the Borrower contemplated thereby;
NOW, THEREFORE, for good and valuable considerations, the receipt and
sufficiency of which are hereby expressly acknowledged, and in order to induce
the Senior Lender to enter into the Senior Lender Documents and to factor the
accounts of the Borrower and to make loans and advances and extend other credit
accommodations to the Borrower pursuant thereto, and to better secure the Senior
Lender in respect of the foregoing, the parties hereto, intending to be legally
bound hereby, agree as follows:
1. Definitions. In addition to the terms defined in the recitals hereto,
the following terms shall have the following meanings for the purposes of this
Agreement:
2
"Agreement" - this Subordination Agreement, as the same may be
modified, amended or supplemented from time to time pursuant to Section 21
hereof.
"Business Day" - any day excluding Saturday, Sunday and any day which
is a legal holiday under the laws of the State of Florida or is a day on
which banking institutions located in the State of Florida are closed.
"Default" - any event or condition which, with the giving of notice or
the passage of time or both, would constitute an Event of Default if the
Borrower took no action to correct the same.
"Event of Default" - shall mean the occurrence of any event under the
Senior Lender Documents and the expiration of all grace periods applicable
thereto which entitles the Senior Lender to terminate the Senior Lender
Documents or to accelerate the Senior Indebtedness owing thereunder.
"Indebtedness" - all loans, advances, indebtedness, obligations,
liabilities, covenants and duties at any time owing by the Borrower,
whether voluntary or involuntary, and however arising, direct or indirect,
absolute or contingent, liquidated or unliquidated, determined or
undetermined, secured or unsecured, due or to become due, including all
interest, fees, costs, expenses and attorneys' fees for which the Borrower
is now or hereafter becomes liable to pay under any agreement or by law.
"Lenders" - the Senior Lender and the Subordinated Lender, or any of
them or any combination of them, as the context may require, and any other
lender or lenders refinancing or refunding all or any portion of the Senior
Debt or the Subordinated Debt.
"Overadvance" - an advance made by the Senior Lender to the Borrower
under the Senior Lender Documents when an Overadvance Condition exists or
would result from the making of such advance.
"Overadvance Condition" - at any date, a condition such that the
aggregate amount of outstanding advances against the purchase price of
receivables factored by the Senior Lender under the Senior Lender Documents
exceeds the maximum amount which the Borrower is then permitted to have
outstanding as more particularly set forth and described in the Senior
Lender Documents.
"Permitted Junior Securities" - shall have the meaning ascribed to
such term in Section 5 of this Agreement.
"Permitted Payments" - shall have the meaning ascribed to such term in
Section 3 of this Agreement.
-2-
3
"Senior Debt" - the principal of (and premium, if any) and interest on
(including interest accruing after the occurrence of any default or event
of default under the Senior Lender Documents or after the filing of a
petition initiating any proceeding pursuant to any state or federal
bankruptcy or other insolvency law at a rate per annum equal to the
applicable rate set forth in the Senior Lender Documents), and all fees,
charges, expenses, attorneys' fees and other amounts due on or in
connection with, any Indebtedness owing by the Borrower to the Senior
Lender under the Senior Lender Documents, and any refinancings, renewals or
refundings thereof.
"Senior Lender" - Capital Factors, Inc., a Florida corporation, and
any other lender or lenders refinancing or refunding all or any portion of
the Senior Debt.
"Subordinated Debt" - all Indebtedness of any nature now or hereafter
owing by the Borrower to the Subordinated Lender, whether such Indebtedness
is for the principal of, interest on (including interest accruing after the
occurrence of a default or any event of default in respect of the
Indebtedness owing by the Borrower to the Subordinated Lender or after the
filing of a petition initiating any proceeding pursuant to a state or
federal bankruptcy or other insolvency law at a rate per annum equal to the
applicable rate set forth in the documents evidencing or securing any of
the Subordinated Debt), and all fees, charges, expenses, attorneys' fees
and other amounts due on or in connection with, any such Indebtedness now
or hereafter owing by the Borrower to the Subordinated Lender, and any
refinancings, renewals or refunds thereof.
"Subordinated Lender" - Consolidated Furniture Corporation (f/k/a
Mohasco Corporation), a New York corporation.
2. Debt Subordination.
(a) The Subordinated Lender agrees that, upon the terms and subject to
the conditions set forth in this Agreement, payment of all Subordinated Debt is
expressly subordinated to the prior payment in full of all Senior Debt.
(b) Except as set forth in Section 3 below, unless and until the Senior
Debt shall have been fully paid and all outstanding commitments of the Senior
Lender for the incurring of additional Senior Debt shall have been terminated in
writing, the Subordinated Lender will not, without the Senior Lender's prior
written consent:
(i) Accelerate, ask, demand, sue for, take or receive from or on
behalf of the Borrower, by setoff or in any other manner, the whole or any
part of any monies which may now or hereafter be owing to the Subordinated
Lender on the Subordinated Debt.
(ii) Initiate or participate with others in any suit, action or
proceeding against the Borrower, or otherwise take action against the
Borrower or any of its
-3-
4
assets, to enforce payment of or to collect the whole or any part of
the Subordinated Debt; or
(iii) Ask, demand, take or receive any security from the Borrower
for any of the Subordinated Debt.
(c) The provisions of this Agreement shall apply with respect to
all of the Senior Debt, regardless of whether the Senior Debt has already been
incurred or may be incurred in the future by future advances or other financial
accommodations made or extended by the Senior Lender to the Borrower.
(d) If the Subordinated Lender in violation of this Agreement
shall commence, prosecute or participate in any suit, action or proceeding
against the Borrower, or shall ask, demand, take or receive any security from
the Borrower for any of the Subordinated Debt, or shall attempt to enforce,
foreclose or realize upon any security for the Subordinated Debt, the Borrower
or the Senior Lender may interpose as a defense or plea the making of this
Agreement and the Senior Lender may intervene and interpose such defense in its
name or in the name of the Borrower, and the Borrower or the Senior Lender may
by virtue of this Agreement restrain the enforcement thereof in the name of the
Borrower or the Senior Lender.
3. Permitted Payments. Notwithstanding the Provisions of Section 2
hereof, the Borrower may pay to the Subordinated Lender, and the Subordinated
Lender may demand, accept and retain from the Borrower, payments of
Subordinated Debt in any calendar year up to an aggregate amount not to exceed
$5,000,000 ("Permitted Payments"), if and only to the extent that, immediately
before and after giving effect to any such Permitted Payment, no Default or
Event of Default or Overadvance Condition shall exist.
4. Subordinated Debt Owed Only to Subordinated Lender. The Subordinated
Lender warrants and represents to the Senior Lender that it has not previously
assigned any interest in the Subordinated Debt to any party, that no party owns
an interest in the Subordinated Debt other than the Subordinated Lender
(whether as joint holder of the Subordinated Debt, participants or otherwise),
that the entire Subordinated Debt is owing to the Subordinated Lender, and the
Subordinated Lender covenants that the Subordinated Debt shall continue to be
owing only to it, unless assigned, transferred or disposed of in accordance
with the terms of this Agreement as provided in Section 10 hereof.
5. Priority of Distribution. In the event of (a) any insolvency or
bankruptcy case or proceeding, or any receivership, liquidation, reorganization
or other similar case or proceeding in connection therewith, relative to the
Borrower or its assets, or (b) any liquidation, dissolution or other winding up
of the Borrower, whether voluntary or involuntary, and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshalling of assets or liabilities of the Borrower, then, in any
such event, the Senior Lender shall be entitled to receive payment in full of
all Senior Debt prior to the payment of all or any part of the Subordinated
Debt, and all payments or distributions of assets of the Borrower of any kind
or character, whether in cash, property or securities, to which the
Subordinated Lender would be entitled, except for the provisions of this
Agreement (excluding securities of the Borrower provided for by a plan of
reorganization or readjustment that are equity securities
-4-
5
or are subordinated in right of payment to all Indebtedness of the Borrower
issued to the Senior Lender in such plan of reorganization or readjustment to
substantially the same extent as, or to a greater extent than, the Subordinated
Debt is subordinated to the Senior Debt as provided in this Agreement) (such
equity securities or subordinated securities being herein called the "Permitted
Junior Securities"), including any such payment or distribution which may be
payable or deliverable by reason of the payment of any other Indebtedness of the
Borrower being subordinated to the payment of the Subordinated Debt, shall be
paid to the Senior Lender for application on the Senior Debt.
6. Payments Received by Subordinated Lender. Except for Permitted Payments
and Permitted Junior Securities, should any payment or distribution be collected
or received by the Subordinated Lender upon or with respect to the Subordinated
Debt prior to the payment in full of all Senior Debt and the termination in
writing of all commitments of the Senior Lender for the incurring of Senior
Debt, the Subordinated Lender shall receive and hold the same in trust, as
trustee, for the benefit of the Senior Lender, and shall forthwith deliver the
same to the Senior Lender in precisely the same form received (except for the
endorsement or assignment of the Subordinated Lender where necessary) for
application to the Senior Debt, due or not due, and until so delivered, the same
shall be held in trust by the Subordinated Lender as the property of the Senior
Lender.
7. Grant of Authority. Until all of the Senior Debt is paid in full and all
outstanding commitments of the Senior Lender for the incurring of Senior Debt
are terminated in writing, the Subordinated Lender hereby irrevocably authorizes
and empowers the Senior Lender, in the event any proceeding referred to in
Section 5 above is commenced by or against the Borrower, to (a) collect and
receive every payment or distribution referred to in Section 6 above (other than
Permitted Payments and Permitted Junior Securities) and give acquittance
therefor, (b) file claims and proofs of claim in any such proceeding in respect
of the Subordinated Debt in its name, or in the name of the Subordinated Lender
or otherwise, as the Senior Lender may deem reasonably necessary or advisable
for the exercise or enforcement of any other rights of the Senior Under
hereunder, and (c) to take such action as may be reasonably requested at any
time and from time to time by the Senior Lender to file appropriate claims and
proofs of claim in respect of the Subordinated Debt in order, under the
circumstances set forth in and in accordance with the terms of Section 5 above,
to enable the Senior Lender to enforce any and all claims upon or in respect of
the Subordinated Debt and to receive any and all payments or distributions which
may be payable or deliverable at any time upon or in respect of the Subordinated
Debt.
8. Instrument Legend. On the date hereof or promptly upon the issuance
thereof, each instrument evidencing any of the Senior Debt shall be inscribed
with a legend conspicuously indicating that the payment thereof is subordinated
to the prior payment in full of all of the Senior Debt pursuant to the terms of
this Agreement, and copies thereof shall be delivered to the Senior Lender.
9. Subrogation. After all of the Senior Debt has been paid in full and
until all of the Subordinated Debt has been paid in full, the Subordinated
Lender shall be subrogated to the rights of the Senior Lender to receive
payments and distributions of assets with respect to the Senior Debt, to the
extent that distributions otherwise payable to the Subordinated Lender have been
applied to the payment of Senior Debt in accordance with the provisions of this
Agreement.
-5-
6
As between the Borrower and the Subordinated Lender, a distribution applied to
the payment of Senior Debt in accordance with the provisions of this Agreement
which would otherwise have been made to the Subordinated Lender shall not be
deemed a payment by the Borrower on the Subordinated Debt, it being understood
that the subordination provisions of this Agreement are intended solely for the
purpose of defining the relative rights of the Subordinated Lender, on the one
hand, and the Senior Lender, on the other hand, and nothing contained in this
Agreement shall impair the obligations of the Borrower, which are absolute and
unconditional, to pay to the Subordinated Lender the Subordinated Debt as and
when the same shall become due and payable in accordance with its terms, except
as such obligation is modified by the rights confirmed hereunder in favor of the
Senior Lender, or affect the relative rights of the Subordinated Lender and the
creditors of the Borrower other than the Senior Lender.
10. Assignment of Subordinated Debt. The Subordinated Lender agrees that
until all of the Senior Debt has been paid in full and all outstanding
commitments of the Senior Lender for the incurring of Senior Debt shall have
been terminated in writing, the Subordinated Lender will not assign, transfer or
otherwise dispose of the Subordinated Debt or any portion thereof unless such
assignment, transfer or other disposition is made expressly subject to this
Agreement, and the assignee or transferee expressly acknowledges in an
instrument delivered to the Senior Lender that the Subordinated Debt is being
assigned or transferred subject to the terms of this Agreement.
11. Subordination Non-Impaired. All rights and interests of the Senior
Lender, and all agreements and obligations of the Subordinated Lender hereunder,
shall remain in full force and effect irrespective of: (a) any amendment,
modification, waiver or consent of any term or provision set forth in any
document, instrument or other agreement evidencing or securing any of the Senior
Debt; (b) any change in the time, manner or place of payment of, or any other
term of, all or any portion of the Senior Debt; (c) any change, release or
non-perfection of any lien in any collateral securing the Senior Debt, or any
release or amendment or waiver of or consent to the departure from, any guaranty
for all or any of the Senior Debt; (d) any circumstances which might otherwise
constitute a defense available to, or a discharge of, the Borrower in respect of
the Senior Debt or the Subordinated Lender in respect of its obligations under
this Agreement. The provisions of this Agreement shall continue to be effective
or be reinstated, as the case may be, if at any time payment of any Senior Debt
is rescinded or must otherwise be returned by the Senior Lender upon the
insolvency, bankruptcy or reorganization of the Borrower, or otherwise, all as
though such payment had not been made.
12. Term of Agreement. This Agreement shall continue in full force and
effect and shall be irrevocable by the Subordinated Lender until the earliest to
occur of the following:
(a) All of the parties hereto mutually agree in writing to terminate
this Agreement; or
(b) A11 of the Senior Debt is paid in full and all outstanding
commitments of the Senior Lender for the incurring of Senior Debt are
terminated in writing.
13. Waivers of Subordinated Lender. All of the Senior Debt shall be deemed
to have been made or incurred in reliance upon this Agreement, and the
Subordinated Lender expressly
-6-
7
waives all notice of acceptance by the Senior Lender of the subordination and
other provisions of this Agreement, notice of the incurring of any Senior Debt
from time to time and all other notices not specifically required pursuant to
the terms of this Agreement or by applicable law, and reliance by the Senior
Lender upon the subordination and other agreements as herein provided.
14. Waivers of Parties. No waiver shall be deemed to be made by any party
of any of its rights hereunder, unless the same shall be in writing signed in
behalf of such party, and each waiver, if any, shall be a waiver only with
respect to the specific instance involved and shall in no way impair the rights
of such party or the obligations of the other parties in any other respect at
any other time. Each party agrees that no party shall have any responsibility to
advise any other party of information known to such party regarding the
financial condition of the Borrower or of any circumstances bearing upon the
risk of nonpayment of the Senior Debt, the Subordinated Debt or any other
Indebtedness of the Borrower.
15. Notices. Any notice, demand or other communication required or
permitted under the terms of this Agreement shall be in writing and shall be
made by telegram, telex or electronic transmitter (including telecopy) or
certified or registered mail, return receipt requested, and shall be deemed to
be received by the addressee one (1) Business Day after sending, if sent by
telegram, telex or electronic transmitter (including telecopy) and three (3)
Business Days after mailing, if sent by certified or registered mail. Notices
shall be addressed as follows:
(a) If to the Senior Capital Factors, Inc.
Lender: 1799 West Oakland Park Boulevard
Ft. Lauderdale, Florida 33311
Attn: President
Facsimile No. 305-497-3136
(b) If to the Consolidated Furniture Corporation
Subordinated One Commerce Center
Lender: 102 North Orange Street, Suite 790
Wilmington, Delaware 19801
Attn: President
Facsimile No. 302-573-2507
or at such other address as either party may designate by notice to the other
party in accordance with the provisions hereof.
16. Governing Law. This Agreement shall be interpreted and the rights and
liabilities of the parties hereto determined, in accordance with the laws and
decisions (exclusive of choice of law provisions) of the State of Florida.
17. Expenses. The Subordinated Lender agrees to pay to the Senior Lender on
demand all reasonable expenses of every kind, including, without limitation,
reasonable
-7-
8
attorney's fees, which the Senior Leader may incur in enforcing any of the
rights under this Agreement against Subordinate Lender
18. Parties. This Agreement shall be binding upon, and inure to the benefit
of, each of the Lenders and their respective successors and assigns. The term
"Borrower" as used herein shall also refer to the successors and assigns of the
Borrower, including, without limitation, a receiver, trustee, custodian or
debtor-in-possession.
19. Section Titles. The section titles contained in this Agreement are and
shall be without substantive meaning or content of any kind whatsoever and are
not a part of the agreement among the parties hereto.
20. Authority. Each party represents and warrants to each other party that
it has the authority to enter into this Agreement and that the person signing
for such party is authorized and directed to do so.
21. Entire Agreement. This Agreement constitutes and expresses the entire
understanding among the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements and
understandings, inducements or conditions, whether express or implied, oral or
written. Neither this Agreement nor any provision hereof may be changed, waived
or amended orally or in any other manner other than by an agreement in writing
signed by each Lender.
22. Severability. The provisions of this Agreement are independent of and
inseparable from each other. If any provision hereof shall for any reason be
held invalid or unenforceable, it is the intent of the parties that such
invalidity or unenforceability shall not affect the validity or enforceability
of any other provision hereof, and that this Agreement shall be construed as if
such invalid or unenforceable provision had never been contained herein.
23. Counterparts. This Agreement may be executed by the parties hereto in
one or more counterparts, each of which when so executed shall be an original.
When taken together, such counterparts shall constitute but one and the same
document.
24. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, EACH LENDER HEREBY WAIVES TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR
RELATED TO THIS AGREEMENT.
-8-
9
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto under seal on the day and year first above written.
CONSOLIDATED FURNITURE CORPORATION
(f/k/a Mohasco Corporation)
By: [SIG]
------------------------------------------------
Title: Executive Vice President and
------------------------------------------
Chief Financial Officer
CAPITAL FACTORS, INC.
By: [SIG]
------------------------------------------------
Title: Vice President
------------------------------------------
-9-
10
ACKNOWLEDGMENT AND AGREEMENT
OF THE BORROWER
The undersigned, THE BARCALOUNGER COMPANY, a division of Furniture Comfort
Corporation (f/k/a Mohasco Upholstered Furniture Corporation), a Delaware
corporation, does hereby accept, and acknowledge receipt of a copy of, the
foregoing Debt Subordination Agreement, and agrees that (a) it will not pay any
of the Subordinated Debt except as permitted by the foregoing Debt Subordination
Agreement, and (b) it will be bound by the subrogation provisions of Section 9
of the foregoing Debt Subordination Agreement. In the event of a breach by the
undersigned of any of the provisions herein, all of the Senior Debt shall,
without presentment, demand, protest or notice of any kind except as otherwise
required by the Senior Lender Documents, become immediately due and payable
unless the Senior Lender shall otherwise elect in writing.
All capitalized terms used in this acknowledgment and agreement without
definition shall have the same meanings as set forth in the foregoing Debt
Subordination Agreement.
IN WITNESS WHEREOF, the undersigned has caused this acknowledgment and
agreement to be duly executed on the day and year first above written.
THE BARCALOUNGER COMPANY, a division
of Furniture Comfort Corporation
(f/k/a Mohasco Upholstered
Furniture Corporation)
By: [SIG]
------------------------------------------
Title: Vice President
------------------------------------
-10-
11
ACKNOWLEDGEMENT AND AGREEMENT
OF COURT SQUARE CAPITAL LIMITED (f/k/a Citicorp Capital Investors Ltd.)
The undersigned, COURT SQUARE CAPITAL LIMITED (f/k/a Citicorp Capital
Investors Ltd.), a Delaware corporation, does hereby accept, and acknowledge
receipt of a copy of, the foregoing Debt Subordination Agreement, and agrees
that the collateral assignment of, and grant of lien and security interest in,
all of the Subordinated Debt by the Subordinated Lender to the undersigned as
security for certain obligations owing by the Subordinated Lender to the
undersigned is subject to the terms and provisions of the foregoing Debt
Subordination Agreement.
All capitalized terms used in this acknowledgment and agreement without
definition shall have the same meanings as set forth in the foregoing Debt
Subordination Agreement.
IN WITNESS WHEREOF, the undersigned has caused this acknowledgment and
agreement to be duly executed on the day and year first above written.
COURT SQUARE CAPITAL LIMITED
(f/k/a Citicorp Capital Investors Ltd.)
By: [SIG]
------------------------------------------
Title: VP
------------------------------------
-11-